[Cites 22, Cited by 0]
Karnataka High Court
The State Of Karnataka vs Thousif @ Abubaker Siddiq on 23 February, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 1892 of 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1892 OF 2018 (A)
BETWEEN:
THE STATE OF KARNATAKA
BY POLICE INSPECTOR
PANAMBUR POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001.
...APPELLANT
(BY SMT. RASHMI PATEL, H.C.G.P.)
AND:
1. THOUSIF @ ABUBAKER SIDDIQ
S/O. LATE M. AHAMED
AGED 28 YEARS
Digitally RESIDING AT HOUSE NO.8/127
signed by KANA, INDIRA KATTE, SURATHKAL POST
ANJALI M MANGALURU-575 014.
Location:
High Court 2. ZUBEDA
of W/O. LATE KHASIM
Karnataka
AGED 44 YEARS
RESIDING AT SUNDARA APARTMENT
1ST FLOOR, DOOR NO.101
BRITTO LANE, FALNIR
MANGALURU-575 001.
...RESPONDENTS
(BY SRI KETHAN KUMAR, ADVOCATE, FOR
SRI ABHISHEK MARLA, FOR R-1, AND
SMT. POOJA KATTIMANI, ADVOCATE, FOR
SRI DINESH KUMAR K. RAO, FOR R-2)
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CRL.A No. 1892 of 2018
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) OF THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 26-4-2018 PASSED IN SPECIAL CASE NO.87 OF 2014
ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS (SPECIAL)
JUDGE, D.K., MANGALURU, IN SO FAR AS IT RELATES TO
ACQUITTING RESPONDENT NO.1-ACCUSED NO.1 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 366A, 376(2)(i) AND 506
OF IPC AND UNDER SECTION 4 OF POCSO ACT, AND IN SO FAR AS
IT RELATES TO ACQUITTING RESPONDENT NO.2-ACCUSED NO.2 FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 16 AND 17 OF
POCSO ACT, AND ETC.
THIS CRIMINAL APPEAL IS COMING ON FOR FURTHER
HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
and
HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Heard Smt. Rashmi Patel, learned High Court
Government Pleader appearing for the appellant-State,
Sri Kethan Kumar, learned counsel appearing for Sri Abhishek
Marla, learned counsel for respondent No.1-accused No.1,
Smt. Pooja Kattimani, learned counsel for Sri Dinesh Kumar K.
Rao, learned counsel for respondent No.2-accused No.2, and
perused the material available on record.
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2. This appeal is filed by the State against the judgment
of acquittal dated 26.04.2018 passed by the II Additional
District and Sessions (Special) Judge, D.K., Mangaluru, in
Special Case No.87 of 2014 in so far as accused No.1 for the
offences punishable under Sections 366A, 376(2)(i) and 506 of
the Indian Penal Code, 1860 (for short, 'IPC') and under
Section 4 the Protection of Children from Sexual Offences Act,
2012 (for short, 'POCSO Act') and in so far as accused No.2 for
the offences punishable under Sections 16 and 17 of POCSO
Act, and prays to convict accused Nos.1 and 2 for the charges
levelled against them.
3. The factual matrix of the case of the prosecution is
that PW2, victim girl, aged about 16 years, lodged a complaint
alleging that she had already passed 10th Standard and she is
living with her parents. She has stated that two years prior to
the incident, while the victim was going to School, accused
No.1, who is from the same locality and who is known to her,
used to follow her and used to say that, he is loving her and
she rejected his proposal. She has further stated that on the
previous day of lodging the complaint i.e. on 12.06.2014 in the
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evening at about 5.00 p.m., she had been to Panambur Beach,
accused No.1 followed her even there by saying he is loving her
and requested her to come with him to Mangaluru. They stayed
in the Beach up to 9.00 p.m. in the night. Believing the words
of accused No.1, she went to Mangaluru along with him. In the
night at about 11.00 p.m., accused No.1 brought her to a flat
of accused No.2 near Athena Hospital and introduced accused
No.2 as Zubeda as his relative. Further, accused No.2
encouraged the victim saying that she should not get
frightened and asked accused No.1 and the victim to sleep in a
room in her house. Accordingly, both of them slept in the room,
after a while, accused No.1 committed sexual intercourse on
the victim, without her consent and when she shouted loudly,
accused No.1 threatened her stating that she should not
disclose the matter to anybody and if she discloses, he will not
spare her alive, and committed sexual intercourse up to
12.30 a.m. in the midnight. The next morning, without any
other alternative, the victim made a telephone call to her
mother, PW3, and as per the advice of her mother, she
managed to come out of that house in the evening at about
4.30 p.m. and came to Baikampady and from there, along with
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her mother, she went to the Police Station and lodged the
complaint-Ex.P3 and the same was received by PW12-Woman
Sub-Inspector of Police and in turn, she registered the case in
Crime No.105 of 2014 as per Ex.P13.
4. Investigation was continued by PW14-Circle Inspector
of Police. On 14.06.2014, he visited the spot and conducted the
spot mahazar in the house of accused No.2 as pointed out by
the victim, i.e. house on the east side, bearing Door No.17-18-
1372/3 on the first floor of Sundara Apartment by the side of
Kaprigudde Road as per Ex.P1. It is stated that at the time of
drawing spot mahazar, MO1-bed sheet on the cot and MO2-
cooling glass of accused No.1, which he had left behind, were
seized as pointed out by the victim. As per the instructions of
PW14, accused No.1 was traced and arrested near Surathkal
Bus Stand by PW12-Woman Sub-Inspector of Police. The
voluntary statement of accused No.1 was recorded and accused
No.2 was also arrested. Accused Nos.1 and 2 were subjected to
medical examination and thereafter, they were produced before
the Court. Investigation was continued by PW13-Inspector of
Police, who collected the copy of the rental agreement-Ex.P10
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of accused No.2, obtained Ex.P14-Date of Birth Certificate from
the concerned School, obtained attested copy of Ex.P15-S.S.L.C
marks card of the victim and the Date of Birth of the victim is
mentioned as 18.06.1998. The statements of witnesses were
recorded. The victim was produced before the Magistrate and
statement of the victim was recorded in terms of Ex.P4. After
completion of the investigation, PW13 filed the charge-sheet
and also obtained Ex.P7-FSL report and Ex.P8-medical
certificate of the victim.
5. The trial Judge, after having received the charge-
sheet, heard the respective learned counsel for the parties and
framed the charges. Accused Nos.1 and 2 did not plead guilty
and pleaded trial. The prosecution examined fourteen witnesses
as PW1 to PW14, got marked Exs.P1 to P15 and marked MOs.1
and 2. After closure of the evidence of the prosecution
witnesses, the statements of accused Nos.1 and 2 were
recorded under Section 313 of the Code of Criminal Procedure,
1973 (for short, 'Cr.P.C.') and they denied the incriminating
evidence and did not lead any defence evidence.
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6. The trial Court having considered both oral and
documentary evidence available on record held that the
charges levelled against accused Nos.1 and 2 are not proved.
The story projected by the prosecution appears to be very
artificial. Absolutely, there is no evidence to show that accused
No.1 kidnapped the victim. On contrary, the evidence would
show that the victim had voluntarily accompanied accused No.1
and further observation is made that, there is not even a single
in-mate of the apartment, who has witnessed accused No.1
entering into the house of accused No.2 and hence, granted the
benefit of doubt in favour of accused Nos.1 and 2 and acquitted
them. Being aggrieved by the judgment of acquittal passed
against accused Nos.1 and 2, the present appeal is filed by the
State.
7. Learned counsel appearing for the appellant-State
would vehemently contend that the trial Court committed error
in not appreciating the oral and documentary evidence in
proper perspective, which has resulted in miscarriage of
justice; absolutely, there is no deliberation and discussion on
the evidence of the prosecution witnesses and no reasoned
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judgment has been passed and has reached at a wrong
conclusion. She contends that the victim girl has been
examined as PW2 and she has categorically deposed before the
Court that accused No.1 took her to the house of accused No.2,
wherein, accused No.1 subjected her for sexual act. She also
contends that MO1-bed sheet contains the bloodstains and the
same is proved by the FSL report. She contends that the
accused knowingly well that the victim, aged about 16 years,
subjected her for sexual act and the document, which is
produced before the Court, i.e. Matriculation Certificate
(S.S.L.C. marks card) is very clear that the victim is aged 16
years. She further contends that the trial Court failed to
appreciate that these accused have not discharged their burden
cast upon them under Sections 29 and 30 of POCSO Act and
ought to have drawn adverse interference against them and
convicted them. Further, the trial Court has not appreciated
the evidence of the victim though it is cogent, consistent and
corroborated by the evidence of other witnesses. Hence, on all
these grounds, she prays for interference of this Court.
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8. Per-contra, learned counsel appearing for respondent
No.1 in his argument would submit that the very case of the
prosecution and genesis of the crime is doubtful and he brought
to the notice of this Court that victim PW.2 in her evidence
before the Court stated that her parents have given complaint
that she was missing and that on 13th, Police Smt. Bharti came
along with police staff and took her to Panambur Police Station
and at that time, her parents were there in the station and
hence she has given the complaint in terms of Ex.P3 and also
identifies her signature. Learned counsel also brought to the
notice of this Court to the evidence of PW.12, who is the
Investigating Officer. In his evidence, in paragraph No.2, he
says that on 13.06.2014, when he was in police station at
around 09.30 p.m. PW.2 Udaya Prabha appeared before the
police station and has given the written complaint and the
same is registered in Crime No.105/14 and sent the FIR to the
court and the statement of PW.12 as well as statement of PW.2
victim is contrary to each other with regard to the genesis of
the crime and with regard to the law set in motion. Learned
counsel also brought to the notice of this Court to the evidence
of PW.3 mother of the victim, that she went and lodged the
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complaint of missing of her daughter and also on 12th itself,
accused No.1 came and told her that she knows the
whereabouts of her daughter and PSI Bharathi took accused
No.1 to the police station and so also brought her daughter to
the police station and both accused No.1 and PW.2 were
already there in the Panambur police station and she does not
know as to when the case was registered and the statement of
PW.3 is also contradictory to the evidence of PW.2 and PW.12
and hence the very case of the prosecution is doubtful. Learned
counsel also would submit that PW.2 in her cross examination
categorically admits that accused No.1 was not in the house of
accused No.2. Learned counsel also would vehemently contend
that the victim while giving her statement before the learned
Magistrate under Section 164 Cr.P.C., her father's name is
mentioned as Biju Kumar and in the SSLC marks card, her
father's name is mentioned as Prabhakar and the very victim
PW.2 itself is doubtful and no explanation is given by the
prosecution with regard to the same. Learned counsel also
would submit that the author of the document for proof of age
of the victim was not examined before the court and the same
cannot be relied upon and hence, the question of victim being
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aged about 16 years at the time of the incident also cannot be
accepted and all these factors were taken note of by the trial
Court and rightly acquitted the accused.
9. Learned counsel further submits that the oral
testimony of PW.1, the evidence of the Doctor and the
documentary evidence also do not support the case of the
prosecution and the same is also taken note of by the trial
Court while acquitting the accused and hence it does not
require any interference.
10. Learned counsel for respondent No.1 would
vehemently contend that age of the victim girl was not proved
before the Court and only relies upon the document of
Matriculation Certificate Ex.P15 and Ex.P14 is the Age
Certificate issued by the School Authority and the same cannot
be relied upon, since the same is not proved by examining the
competent authority. Hence, she cannot be termed as minor.
The said contention cannot be accepted for the reason that the
Apex Court in the judgment in P.YUVAPRAKASH vs. STATE
REP. BY INSPECTOR OF POLICE in CRIMINAL APPEAL
NO(S).1898 OF 2023 dated 18.07.2023 at paragraph No.11
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taken note of Section 34 of POCSO Act, which reads as
hereunder:
"34 Procedure in case of commission of offence by
child and determination of age by Special Court. - (1)
Where any offence under this Act is committed by
child, such child shall be dealt with under the provisions of
Juvenile Justice (Care and Protection of Children) 2015, (2 of
2016).
(2) If any question arises in any proceeding before the
Special Court whether a person is a child or not, such
question shall be determined by the Special Court after
satisfying itself about the age of such person and it shall
record in writing its reasons for such determination.
(3) No order made by the Special Court shall be deemed to
be invalid merely by any subsequent proof that the age of
person as determined by it under sub-section (2) was not the
correct age of that person"
The Apex Court also observed that in view of Section
34(2) of the POCSO Act, Section 94 of the JJ Act, 2015
becomes relevant, and applicable, the same is extracted herein
below:
"94. Presumption and determination of age. - (1) Where, it is
obvious to the Committee or the Board, based on the
appearance of the person brought before it under any of the
provisions of this Act (other than for the purpose of giving
evidence) that the said person is a child, the Committee or
the Board shall record such observation stating the age of the
child as nearly as may be and proceed with the inquiry under
section 14 or section 36, as the case may be, without waiting
for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought
before it is a child or not, the Committee or the Board, as the
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case may be, shall undertake the process of age
determination, by seeking evidence by obtaining -
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical
age determination test conducted on the orders of the
Committee or the Board:
Provided such age determination test conducted on the order
of the Committee or the Board shall be completed within
fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the
age of person so brought before it shall, for the purpose of
this Act, be deemed to be the true age of that person."
11. It is evident from conjoint reading of the above
provisions that wherever the dispute with respect to the age of
a person arises in the context of her or him being a victim
under the POCSO Act, the Courts have to take reference to the
steps indicated in Section 94 of the JJ Act. The three
documents in order of which the Juvenile Justice Act requires
consideration is that concerned Court has to determine the age
by considering the following documents:
"(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence thereof;
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(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical
age determination test conducted on the orders of the
Committee or the Board".
12. Section 94(2)(iii) of the JJ Act clearly indicates that
the date of birth certificate from the school or matriculation or
equivalent certificate by the concerned examination board has
to be firstly preferred in the absence of which the birth
certificate issued by the Corporation or Municipal Authority or
Panchayat and it is only thereafter in the absence of these such
documents, the age is to be determined through "an
ossification test" or "any other latest medical age determination
test".
13. Having considered the discussion made by the Apex
Court in the judgment referred (supra), it is very clear that at
the first instance, matriculation or equivalent certificate has to
be taken note of. In the case on hand, the same is placed
before the Court and though, the author is not examined before
the Court, the same is an authenticated document, wherein
date of birth of the victim is mentioned as 18.06.1998 and date
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of the incident is 12.06.2014 and at that time, the victim was
aged about 15 years 11 months. The counsel also vehemently
contends that Ex.P15 does not belong to the victim and name
of father is mentioned as Prabhakara and while giving her
statement before the Court, her father's name was mentioned
as Biju Kumar. The same has been clarified by the prosecution
while examining P.W.3. The P.W.3 deposed before the Court
that her first husband is Prabhakara and her second husband is
Biju Kumar, who is also cited as C.W.7 and specifically deposed
that her daughter's father's name is mentioned in the School
Certificate as Prabhakara and the same is not disputed during
the course of cross-examination of P.W.3. Hence, the
contention of learned counsel for respondent No.1 cannot be
accepted and only suggestion was made that she has not
stated the same before the Investigating Officer that her first
husband's name is Prabhakara and except this suggestion, no
other suggestion that her first husband was not Prabhakara.
The Investigating Officer, who was examined as P.W.13 also
clarified and explained in paragraph No.4 that he has recorded
the further statement of P.W.3 that her second husband's name
Biju Kumar and in the school documents also, name of the
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father of the victim is mentioned as Prabhakara. When such
clarification is also given by the Investigating Officer as well as
P.W.3, the very contention of learned counsel for respondent
No.1 cannot be accepted.
14. Learned counsel appearing for respondent
No.2/accused No.2 would submit that none of the witnesses
speaks as to accused No.1 and PW.2 being together and also
clear admission is given by PW.2 victim in her cross
examination that accused No.1 was not in the house of accused
No.2. Learned counsel also would submit that even though bed
spread was seized in the house of accused No.2, witness PW.4
and other recovery witnesses have turned hostile. PW.8
depose before the Court that his wife Smt. Vijayashree B.
Poonja is the owner of the premises and the evidence of PW.8
also will not come to the aid of the prosecution. Learned
counsel also would submit that in order to invoke Sections 16
and 17 of the POCSO Act, none of the witnesses have spoken
about accused No.2 abetting accused No.1 to have sexual
intercourse with the victim girl and in the absence of any
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ingredient of offence under Sections 16 and 17 of POCSO Act,
question of convicting accused No.2 does not arise.
15. In reply to this argument, learned H.C.G.P appearing
on behalf of the appellant/State would submit that PW.2 speaks
about the recovery and her evidence is very clear that mahazar
was conducted in the house of accused No.2 and other
witnesses also speaks about mahazar being conducted in the
house of accused No.2; that PW.2 also speaks that accused
No.2 took the premises of PW.8 on rent and hence the
prosecution also made out the case against accused No.2 also.
16. Having heard learned H.C.G.P appearing for the
appellant/State and also learned counsel appearing for
respondents/accused Nos.1 and 2 and considering both oral
and documentary evidence available on record, the point that
would arise for consideration of this Court are:-
1. Whether the trial Court committed an error
acquitting accused Nos.1 and 2 of the charges
levelled against them?
2. What order?
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17. Having taken note of the evidence available on record
and also the charges framed against accused Nos.1 and 2, we
have given our anxious consideration to both oral and
documentary evidence available on record. No doubt, as
pointed out by learned counsel appearing for accused No.1/
respondent No.1, there is discrepancy in the evidence of PW.2
and PW.12 and also the evidence of PW.3 with regard to the
genesis of the crime and they have given different versions.
PW.12 says that PW.2 came and lodged the written complaint
in the police station. But PW.2 says that PSI Bharati, came and
took both of them and PW.3 also gives different version.
However, the contradictions, which are available before the
Court will not go to the very root of the case of the prosecution
and the same is only infirmity and irregularity in the evidence
of PW.2, PW.3 and PW.12 with regard to the genesis of the
crime is concerned. But the fact is that a missing complaint was
given by PW.3 at the first instance in the police station that her
daughter is missing and also the evidence of PW.3 is very clear
that on the very same day of lodging of the complaint, accused
No.1 came and informed her that he knows the whereabouts of
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her daughter. But PW.3 says that PSI Bharati took accused
No.1 when he came and informed the same and also brought
her daughter to the police station and again she says that both
of them were there in the police station. The evidence of PW.2
is very clear that Smt. Bharati, PSI came and took her to
Panambur police station. Hence, it is very clear that PSI Bharati
only secured accused No.1 and PW.2 to the police station. But
the version of PW.2 victim is contrary to the same. Though
there is discrepancy in respect of genesis of crime is concerned,
the Court has to examine the other evidence available before
the Court. PW.2 victim was taken to the Magistrate at the first
instance and her statement was recorded as per Ex.P4, wherein
she has categorically stated before the court that she has
studied upto 10th Standard and accused No. 1 is her
neighbour, he was forcing her to love him, but she refused and
thereafter started to love him and having come to know about
the same, her parents were beating and abusing her and that
on 12.06.2013, she called accused No.1 and informed him
about her parents giving trouble to her and requested for his
help and the same was agreed by accused No.1 and he took
her to a beach and also made the promise that he would make
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accommodation in his relatives' house and thereafter, he took
her to an apartment and in the said apartment, a lady, a boy
and a girl were there and accused No.1 instructed her to be in
the room of the said flat and accused No.1 subjected her for
sexual act as against her wish and when she screamed, the
lady, who was in the said apartment informed her not to
scream. On the next day, she came to know that the said lady
was running a brothel in the said house. That accused No.1
having subjected her for sexual act informed her to be in the
said house and he would come and take her on the next day
morning, however, he did not come to take her; that accused
No.1 promising her to marry her, subjected her for sexual act
against her will. Hence, she gave the complaint at Panambur
Police Station. Said statement under Section 164(5) Cr.P.C.
made by victim PW.2 before the learned Magistrate is marked
as Ex.P4. Hence, this Court has to examine the evidence
available before the Court when the victim was examined
before the Court i.e. PW.2. PW.2 victim in her evidence also
categorically says that she and accused No.1 were there in the
beach and accused No.1 informed her that he would marry her
and in the evening, accused No.1 took her to an apartment and
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made her to sit in the room and accused No.2 told her not to be
scared and accused No.1 subjected her for sexual act in the
said room against her will and the said sexual act was against
her consent and on the complaint by her parents, she was
taken to Panambur police station by Smt. Bharathi and she
gave a complaint in terms of Ex.P3 and based on the said
complaint, spot mahazar was conducted in terms of Ex.P1 and
after 15 days, she gave statement before the learned
magistrate in terms of Ex.P4. This witness was subjected to
cross examination and during the course of cross examination,
it is elicited with regard to the fact of her parents scolding and
assaulting and also parents have given the complaint that she
was missing and also even after lodging the complaint, she did
not want to join her parents and without informing the parents,
she left the house and though answer is elicited from the
mouth of PW.2 that she knows what is right and what is wrong,
she volunteers that she was a minor. It is also elicited that she
was having love against accused No.1. But in the cross
examination of PW.2, nothing is suggested to PW.2 that
accused No.1 did not subject her for sexual act as against her
wish and except an omnibus suggestion that no such incident
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has taken place as deposed in her chief examination, there is
no effective cross examination of PW.2 with regard to the
sexual act done by accused No.1 during the course of cross
examination. No doubt, in the cross examination by learned
counsel for accused No.2, it is elicited that she only called upon
accused No.1 stating that her parents were troubling her and
also that when she went to the house of accused No.2, her
clothes were wet and hence accused No.2 provided the clothes
of her daughter and there were two rooms, but accused No.1
was not in the said room and suggestion was made that when
her parents were troubling her, accused No.2 consoled her.
18. Having considered the evidence of this witness and
also considering the evidence of the Doctor, who has been
examined as PW.7, her evidence is very clear that the victim
girl was examined by her and on examination, she found that
the victim girl was subjected to sexual act and victim was
brought to her by WPC-798 and there was reddishness at
introitus present in the posterior fontanels and introitus admits
two fingers and given the report as per Ex-P8 stating that there
is evidence of sexual intercourse on victim girl and also
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identifies her signature in the letter submitted to the IO in
terms of Ex.P9. This witness was subjected to cross-
examination and in the cross-examination, a suggestion was
made that the reddishness would occur if there is itching in the
private part, however, the same was denied and if any person
inserts his own finger, there are chances of such reddishness.
Except this answer elicited from the mouth of PW.7, nothing is
suggested to this witness. Even nothing is suggested to this
witness. Nothing is elicited from the mouth of PW.7 and only
suggestion was made that if the victim girl was subjected to
sexual act once, there are no chances of loosening of the
private part and the same was also denied.
19. Having considered the evidence of PW.2 and also the
medical evidence available before the Court, this Court has to
take note of the judgment of the Apex Court in the case of
Phool Singh v. State of Madhya Pradesh reported in AIR
2022 SC 222 wherein, the Apex Court made an observation
with regard to the evidence of rape victim. Testimony of
Prosecutrix's reliability: when prosecutrix's was alone at home,
accused jumped the wall, entered into her bedroom and
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committed rape before fleeing away, prosecutrix fully
supported the case of the prosecution, being consistent right
from the very beginning, accused unable to point out why sole
testimony of prosecutrix should not be believed, no reason to
doubt the credibility and trustworthiness of Prosecutrix; once
the prosecutrix is found to be reliable and trustworthy without
any further corroboration, conviction of accused relying upon
sole testimony of prosecutrix sustained.
20. It is trite law also that when the victim gives evidence
before the Court stating that she was subjected to sexual act
and also when the victim immediately was taken before the
learned Magistrate and her statement was recorded in terms of
Ex.P4 that she was subjected to sexual act without her consent
and the same is substantiated before the Court by examining
herself as PW.2 that accused No.1 subjected her for sexual act
as against her consent, even assuming that if she has given the
consent, the same cannot be considered in view of Section 2D
of the POCSO Act, wherein it is clear that the 'child' below the
age of '18' is a minor and hence, the question of even consent
also does not arise. In the case on hand, the medical evidence
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as well as the evidence of PW.2 is very clear with regard to
subjecting the victim girl PW.2 for sexual act and even no
effective cross examination was made disputing subjecting
victim to sexual act and it is not even suggested during the
course of cross examination that PW.2 that she was not
subjected to sexual act by accused No.1 and even in the cross
examination of the Doctor also, no such suggestion was made
that victim girl was not subjected to sexual act and the medical
evidence corroborates the evidence of the prosecution. The
other evidence available before the Court is that of the mother
PW.3 of the victim and the fact that the mother had filed the
complaint immediately when her daughter was missing is also
not before the Court. It is also important to note that PW.3
mother categorically says that accused No.1 and PW.2 were
brought to the police station and no doubt, PW.3 says that
accused No.1 only came and informed that he know the
whereabouts of the victim and thereafter the PSI Bharathi
brought accused No.1 to the police station and PW.12 Bharathi
was also examined before the Court with regard to
apprehension of both accused No.1 and PW.2 and registering
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the FIR and securing accused No.1 on 14.06.2014 and
produced before the Investigating Officer.
21. Having considered all these materials available before
the Court, it is a fit case to reverse the finding of the trial Court
and no doubt, this Court is also very conscious that while
reversing the judgment of the trial Court, there must be
cogent evidence and the same should point out the very role of
the accused, that accused only did the act and if any two
reasons in re-appreciating the evidence is available before the
court, then the benefit of doubt should be given to the accused.
But in the case on hand, no such circumstances warranted
giving any such benefit of doubt and question of giving any
such benefit also doesn't arise.
22. It is also held by the Coordinate Bench of this Court in
Crl.A.No.976/2020 (The State by Sub-Inspector of Police
v. P.S. Pradeep and another DD 28.03.2024) that the
accused has primarily the double benefit. Firstly, the
presumption under law is that, unless his guilt is proved, the
accused has to be treated as an innocent person in the alleged
crime. Secondly, the accused has already been enjoying the
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benefit of judgment of acquittal passed under the impugned
judgment. As such, bearing the same in mind, the evidence
placed by the prosecution in the matter is required to be
analysed.
23. This Court would also like to refer to the judgment in
the case of Chandrappa and others -v- State of Karnataka
reported in (2007) 4 SCC 415, while laying down the general
principles regarding powers of the Appellate Court while dealing
in an appeal against an order of acquittal, and it was pleased to
observe at paragraph Nos.42(4) and 42(5) as below:
"42(4) An appellate Court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent unless he is
proved guilty by a competent Court of law. Secondly, the
accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened by
the trial Court.
42(5) If two reasonable conclusions are possible on the basis of
the evidence on record, the appellate Court should not disturb
the finding of acquittal recorded by the trial Court."
24. Further, in the case of Sudershan Kumar -v- State
of Himachal Pradesh reported in (2014) 15 SCC 666, while
referring to Chandrappa's case (supra), the Hon'ble Apex Court
at paragraph No.31 of its judgment was pleased to hold that, it
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is the cardinal principle in criminal jurisprudence that
presumption of innocence of the accused is reinforced by an
order of acquittal. The Appellate Court, in such a case, would
interfere only for very substantial and compelling reasons, then
only the Court can reverse the same.
25. Having considered the principles laid down in the
above judgments and also in keeping in the mind the principles
of referred judgments supra and having reassessed the
material available on record, the evidence of victim PW.2
throughout when the complaint was lodged as per Ex.P3 and
also while making statement under Section 164 Cr.P.C. and
also before the Court was that accused No.1 only subjected her
for sexual act and the medical evidence also supports the case
of prosecution and as observed by us earlier, there is no
effective cross-examination denying the very act of subjecting
the victim for sexual act and the evidence of PW.1, the doctor's
evidence and PW2 victim's evidence is consistent and
reasonable and also the same is not seriously disputed by
accused No.1 during the course of cross-examination and the
cross-examination made by the defence counsel before the
Trial Court is also not in respect of the incident which the victim
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has deposed before the Court and nothing is elicited from the
mouth of P.W.2 that she was not subjected to sexual act. When
such being the case and cogent evidence is available before the
Court and the evidence of the victim is reliable and there is no
infirmity in the evidence of P.W.2 as well as medical evidence,
it is a fit case to reverse the findings of the Trial Court in
respect of accused No.1 is concerned.
26. Now, in respect of accused No.2, it is the very specific
case of the prosecution that sexual act was committed in the
house of accused No.2. However, answer elicited from the
mouth of P.W.2 during the course of cross-examination made
by accused No.2 counsel is very clear that she being afraid of
her parents came to the house of accused No.2 and even
accused No.2 also provided cloth of her daughter when she
came to the house of accused No.2. But, in order to come to a
conclusion of invoking Sections 16 and Section 17 of POCSO
Act, 2012 that accused No.2 only committed the offence of
abetment, no such ingredient is found and none of the
prosecution witnesses depose before the Court that accused
No.2 committed the offence under Sections 16 and 17 of
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POCSO Act. The admission on the part of P.W.2 is very clear
that when she came to the house of accused No.2, her cloth
was wet and also says that accused No.1 was not in the house
of accused No.2.
27. When such evidence and admission is given and the
evidence of the prosecution is not pointing out the role of
accused No.2, but the bed sheet from the house of accused
No.2 was seized and witnesses were also examined before the
Court, the recovery witness i.e., P.W.4 not supported the
seizure, but P.W.1, who is the neighbour supports the case of
prosecution. However, P.W.1, who is also a neighbour of the
said apartment in her chief evidence supports the seizure, but
not supports the incident. But, in the cross-examination of
P.W.1, she admits that she is not aware of what is written in
Ex.P1 and also she is not having any information for what
reason police came near the house of accused No.2. When such
answer is given that she is not aware of the contents of Ex.P1
and for what reason the police came near the house of accused
No.2 and no information to that effect, the evidence of P.W.1
cannot be relied upon with regard to spot mahazar is
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concerned. But, the fact is that it has emerged during the
course of the evidence that an accommodation is provided to
the victim in the house of accused No.2. But, in order to invoke
the offence under Sections 16 and 17 of the POCSO Act, 2012,
wherein charge has been framed against accused No.2 under
the said offence, none of the witnesses, who have been
examined before the Trial Court spoke anything about the
ingredients of those offences. When such being the case, in the
absence of any material evidence before the Court to invoke
such offence, question of invoking Sections 16 and 17 of the
POCSO Act, 2012 against accused No.2 does not arise.
28. The prosecution also relies upon the evidence of
P.W.8-owner of the apartment. No doubt, P.W.8 says that
accused No.2 is the tenant of PW.8 and the same will not come
to the aid of the prosecution, in order to prove the charges
levelled against accused No.2 having taken note of over all
evidence before the Court. Even P.W.9, who is the neighbour of
accused No.2 did not state about the role of accused No.2.
When such being the case, benefit of doubt goes in favour of
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accused No.2 and there is no incriminating material against
accused No.2 and therefore, we answer the point accordingly.
29. Though charges are levelled against accused No.1
invoking the offence under Section 366A of IPC, there is no
material before the Court and the victim herself has admitted
that she only called accused No.1 and informed about the
trouble caused by her parents. Even with regard to Section 506
of IPC also, there is no material before the Court to come to an
other conclusion and only material is found for the offence
under Section 376(2)(i) and Section 4 of POCSO Act, 2012.
30. In view of the discussion made above, we pass the
following:
ORDER
(i) The criminal appeal is allowed-in-part.
(ii) The judgment of acquittal dated 26.04.2018
passed in Special Case No.87/2014 by
learned II Addl. District & Sessions(Special)
Judge, Dakshina Kannada, Mangaluru in
respect of accused No.2 is confirmed.
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(iii) In respect of accused No.1, the judgment of
the Trial Court acquitting the accused No.1 is
set aside and he is convicted for the offence
punishable under Sections 376(2)(i) and
Section 4 of POCSO Act, 2012 only.
(iv) The accused No.1 is ordered to undergo
sentence for a period of ten years with fine of
Rs.50,000/- to be deposited within a period
of two weeks.
(v) On depositing fine amount of Rs.50,000/-,
the same is payable to P.W.2-victim on
proper identification.
(vi) The accused No.1 is directed to surrender
before the Trial Court within two weeks from
today. If he fails to surrender before the Trial
Court, the learned Trial Judge is directed to
secure him and send him to prison by issuing
a conviction warrant.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
KVK, MN, ST
List No.: 1 Sl No.: 8
